The defence lawyer for the North Saanich woman charged in relation to a crash that left an 11-year-old girl severely debilitated and non-responsive, told the courts on Tuesday during final submissions that the evidence presented over the past week shows she was going close to 53 km/h at the point of impact.
Tenessa Nikirk is charged with one count of dangerous operation of a motor vehicle causing bodily harm after Leila Bui was hit on Dec. 20, 2017 while in a crosswalk at the intersection of Ash Road and Torquay Drive in Saanich while on her way to school.
Tom Morino said her speed was not a departure from the norm citing an engineering report that showed the usual speed of vehicles travelling through that intersection was around 50 km/h.
At the time of the crash, a text message came in on Nikirk’s phone but no evidence was presented to show whether she had opened it or not, along with no evidence to show if she was using the hands-free feature on her device.
“Even if you accept she’s got her phone is her hands, she’s pushing buttons as she’s driving down the road that is — in my respectful submission — not taking it to the level of dangerous,” said Morino, suggesting a momentary distraction was a better classification.
Jess Patterson, Crown prosecutor, asserts that Nikirk was engaged in a texting conversation prior to the crash because she was responding quickly to the messages. Nikirk’s phone was not seized at the time of the crash.
“Even if your honour were to accept that [Nikirk] was travelling the speed limit when she entered the crosswalk, that doesn’t mean it’s not dangerous,” said Patterson.
Judge Mayland McKimm said he could see Morino’s point. At one point wondering aloud if holding a phone is “really any different than changing the radio or navigation [controls],” but adding that if someone is walking across the road, leisurely, in front of traffic — “that doesn’t mean you can just run them down because you’re travelling the speed limit.”
Last week an expert in calculating the velocity of vehicles from video described how the SUV Nikirk was driving — which was caught on dash-cam footage — accelerated to more than 90 km/h as it passed another vehicle, heading towards the intersection where Bui was struck.
Dash-cam footage released to the media shows a dark coloured SUV passing on a solid yellow line at the six second mark and driving up the road in front of the two vehicles. Almost 50 seconds later the driver comes to the intersection and the SUV can be seen parked on the side of the road as people from nearby houses rush to the scene.
Court also heard from a number of witnesses who recounted Nikirk’s erratic driving just before the crash. Steven Kachanoski witnessed the crash and told the courts he watched the little girl get thrown towards his car before sliding, on her back, and coming to rest next to his driver’s side door.
|Myla Bui snuggles with her sister Leila.(GoFundMe)|
Samantha Etzel also testified last week that she was driving a little slower than usual that day because there was frost on the roads. She says the driver of a black or dark SUV was following her so closely she couldn’t see the front of the car, adding that she watched the driver “constantly looking up and down as if they were texting.”
Leila Bui has been in a non-responsive state since the morning she was struck on her walk to school. Now 13, the young girl’s family remains hopeful – but says their lives are changed irrevocably.
“It happened so fast and it changed all of our lives,” Kairry Nguyen, Bui’s mother, said through tears last week. “Our little girl, she’s there but she’s still not there.”
The next expected court date is to fix a date for verdict.
— With files from Nina Grossman